Have the Courts Overlooked the
Problem of the Predator Spouse?

By C. Peter R. Gossels

In preparation for a recent divorce trial, I came across Rosenblatt v. Kaslow-Rosenblatt, 39 Mass. App. Ct. 297 (1995), which held that the dependent spouse's standard of need after a short-term, childless marriage is to be measured, for alimony purposes, by the standard of living she had enjoyed during the marriage, not by her financial status prior to marriage. Grubert v. Grubert, 20 Mass. App. Ct. 811, 819 (1985).

Rosenblatt proved to be a major obstacle to achieving what we considered to be a just result in our case.

My client, whom we shall call "John," is a retired physician residing in one of Boston's most desirable suburbs. He supports himself on his Social Security checks, his pension and the income from savings accumulated over the course of a lifetime of frugal living.

After 50 years of marriage, John's wife died and he found himself living alone in a large house. Still vigorous for a man of 80, John turned to a match-making agency hoping to meet a woman who would come to love him.

John was soon introduced to "Phyllis" (not her real name), an attractive 50-year-old who lived in a homeless shelter in Boston.

When she met John, Phyllis was earning about $275 per week, including income from Social Security based on her alleged attention deficit disorder. She was $25,000 in debt. Phyllis had three adult children from three prior marriages, which all had ended in divorce.

As soon as they were married, Phyllis quit her job, moved into John's home and persuaded him to pay her debts.

She also began to have episodes of unprovoked violent behavior toward John followed by affectionate intervals that he hoped would continue. It was during those intervals that Phyllis seduced John into conveying virtually all of his real and personal estate into their joint names, even though she had contributed nothing to John's property.

Having obtained access to John's accounts and credit cards, Phyllis began to spend his money. During the first year of their marriage, Phyllis had drawn checks totaling $50,000 and charged more than $40,000 on their credit cards.

Among those charges were payments to a series of mental health professionals to whom she complained about stress, anxiety and depression allegedly caused by her marriage — "mental disorders" that are largely subjective and easy to simulate when one goes from doctor to doctor, as she did.

After 20 months of marriage, Phyllis persuaded John to purchase a $700,000 house in Naples, Fla., where they might spend the winters together.

Hoping to save his marriage, John assumed a mortgage, paid the balance from savings and took title to the property as joint tenants with Phyllis. Two months later, Phyllis took one of John's cars and drove to Naples, never to return to the marital home.

During the pretrial conference, Phyllis demanded alimony of $15,000 per month and a life insurance policy based on the very high standard of living that she had created for herself by promising to love and care for John, as well as her claim that she was disabled from employment because of the stress she allegedly incurred during her brief, childless marriage.

The fact that Phyllis had converted $1 million of John's life savings during the three years of her marriage for her benefit and that of her children did not seem to matter when her claim was weighed on the scale of

Opinion

Grubert and Rosenblatt offer poverty-stricken predator spouses a real opportunity to obtain generous awards of alimony for the rest of their lives after a short-term, childless marriage.

the Rosenblatt and Grubert standard, but a shrewd, imaginative judge helped us to settle the terms of the divorce.

Phyllis' claims teach us an important lesson, however: Grubert and Rosenblatt offer poverty-stricken predator spouses a real opportunity to obtain generous awards of

alimony for the rest of their lives after a short-term, childless marriage because the standards of "station" and "needs of the parties" set forth in G.L. c. 208, Sect. 34 , have not been sufficiently defined by law or the courts.

It has been said that "the purpose of alimony is to provide adequate support for a spouse who needs it" and that " G.L. c. 208, sec. 34 allows a judge broad discretion in considering how much alimony, if any, should be awarded to either spouse." William s v. Massa, 431 Mass. 619, 634 (2000), and Gottsegen v. Gottsegen, 397 Mass. 617, 623 ff (1986).

But a trial judge's exercise of that discretion may be held to have been "plainly wrong or excessive" (Redding v. Redding, 390 Mass. 102,107 (1986)), as in Rosenblatt, because the judge had failed to apply the standard of need defined by Grubert — namely, the dependent spouse's standard of living "during the marriage."

Although the Grubert standard has been distinguished by LaValley v. LaValley, 25 Mass. App. Ct. 918 (1987), which dealt with the common situation where there is not enough marital property or income to permit the dependent spouse to maintain a standard of living comparable to the one he or she enjoyed during marriage, our appellate courts do not seem to have offered sufficient guidance to our trial judges, who are confronted with demands for alimony in short-term, childless marriages.

As a result, trial judges now feel compelled to apply the Grubert standard of need to such marriages, even though the Massas had two children during their 20 years of marriage, the Gruberts had six children during 32 years of marriage and the Rosenblatts had no children during 10 years of marriage.

No wonder, then, that a predator spouse like Phyllis, a debt-ridden veteran of three prior divorces living in a homeless shelter, knew that she could propel herself into a much higher station in life (and therefore command a large award of alimony) by marrying an old man for his money and by seducing him into allowing her, as his wife, the unlimited use of his credit cards and bank accounts.

Phyllis was also shrewd enough to create a paper trail of documents from a series of mental health professionals, whom she visited with complaints alleging that she had become so depressed by the stress in her marriage that she was unable to earn a living.

Although the symptoms she described were entirely subjective, Phyllis knew that subsequent mental health professionals

might include the "history" set forth in earlier reports of mental health professionals, thereby transforming Phyllis' allegations into diagnoses.

Having thus created documents tending to prove that she was disabled, Phyllis was able to demand a large amount of alimony for the rest of her life after only 20 months of marriage to which she had contributed nothing of value.

Based on the factual record in Massa, Grubert and Rosenblatt, I believe that there is no justification for awarding alimony to the spouse of a short-term, childless marriage based on the Grubert definition of "need," especially where she had inflated her "needs" by extravagant spending and claims of disability based on subjective complaints of depression.

What, then, is to be done?

Ten years ago, then-Judge Edward M. Ginsburg published a thoughtful article in the January 1997 issue of the Massachusetts Family Law Journal entitled "The Place of Alimony in the Scheme of Things," which stated that there was:

"a general consensus of the trial court level ... that alimony after a short-term marriage should be transitional in nature and in most cases not exceed half the length of the marriage, including the period during which temporary alimony is paid ... after giving each party what he or she brought into the marriage and dividing up the product of the marriage."

Judge Ginsburg's "transitional" theory had, of course, been rejected by Rosenblatt even before he discussed it. Unfortunately, there is no further history of this matter, although the Supreme Judicial Court had granted further appellate review to one of the Rosenblatts. See 421 Mass. 1107 (1995).

But, if we ignore the label "transitional alimony," doesn't Judge Ginsburg's alimony formula deserve further consideration by our appellate courts to protect the victims of short-term, childless marriages from the predator spouses they married?